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BBA Comments on CEBS/CESR/CEIOPS Consultation on Regulation 1781/2006

Core Content

The British Bankers' Association (BBA) has provided detailed comments on the CEBS/CESR/CEIOPS consultation document regarding the interpretation and application of European Regulation 1781/2006, which aims to increase transparency in electronic funds transfers by requiring payer information to be available to Payee Payment Service Providers (PSPs).

The BBA supports the objectives of the Regulation but emphasizes the need for a balanced and practical approach, especially given the high volume and automation of electronic funds transfers. They stress that the interests of legitimate customers must not be compromised by overly strict or ambiguous interpretations of the Regulation.

Main Views and Key Points

General Observations

• Objective Alignment: The BBA supports the Regulation's goal of increasing transparency but cautions against over-zealous application that could harm customers.
• Practical Implementation: They argue that the Regulation must be applied in a way that is clear, unambiguous, and consistent across the EU.
• Customer Focus: Banks must maintain service quality and avoid unnecessary delays or failures due to misinterpretations of the Regulation.

Document Analysis

• Para 7 and 8: The BBA finds the distinction between these paragraphs artificial and suggests that identifying and sampling are parts of an integrated process.
• Term "obvious meaningless information": They propose replacing this with "information clearly intended to circumvent the intention of Special Recommendation 7 and Regulation 1781/2006" to avoid subjective interpretations.
• Para 9 and 11: The BBA recommends changing the wording to reflect that PSPs "may" become aware of non-compliance rather than "will", and that paragraph 11 should start with "If the PSP becomes aware..."
• Para 13: They disagree with the suggestion that PSPs should systematically reject transfers, as this would be detrimental to customers and could lead to legal claims.

Time Deadlines

• Para 21 and 26: The BBA considers the proposed 3-day follow-up period unrealistic, particularly for developing countries or those in civil unrest.
• General Recommendation: They suggest that time deadlines should not be specified in the common understanding document and that PSPs should handle them internally.

Incomplete Information and Suspicion of ML/TF

• Para 22-24: The BBA believes that incomplete information and delays in rectifying it are rarely indicative of money laundering or terrorist financing (ML/TF) and that the post-event sampling process is inefficient.
• Recommendation: They suggest that the common understanding should not impose additional suspicion assessments beyond those already required under AML/CTF directives and criminal law.

Role of Intermediaries

• Para 38: The BBA does not see the need for a separate section on intermediaries, as the situation is already addressed in 3.1.3.
• Intermediary Practice: They recommend that Payee PSPs should directly address requests for missing information to Payer PSPs, rather than relying on intermediaries.

Definition of "Failure"

• Para 41: The BBA supports the idea that failure should be defined based on the absence of required information, not formatting differences.
• Regularity of Failure: They emphasize the need for a common understanding of what constitutes a "failure" and suggest that the regularity should be measured based on the failure to respond to requests for missing information.

Coordination Mechanism

• Para 44: The BBA agrees that failing PSPs should not be confused with those involved in suspicious activity, and that reporting failing PSPs is a separate process from submitting Suspicious Activity Reports (SARs).
• Para 46: They support the idea of avoiding disruption to commercial relationships and note that blacklisting should be a last resort and handled by regulators.

Current Practices

• Para 47: The BBA highlights that intermediaries should not act as a "post-box" for requests for missing information, as this is inefficient and unnecessary.
• Retail Banks: They welcome input on the practices of smaller retail banks and the role of intermediaries in the payment process.

Conclusion

The BBA encourages a flexible and practical interpretation of Regulation 1781/2006, emphasizing the importance of maintaining customer service and operational efficiency while ensuring compliance. They advocate for a coordinated approach involving regulators and the industry to address non-compliance in a proportionate and effective manner.